In O’Brien v. American Exp. Co., 2012 WL 1609957 (S.D.Cal. 2012), Judge Skomal granted Plaintiffs’ discovery requests to oppose a petition to compel arbitration filed by the Defendant in a TCPA class action. The issue was framed as follows:
Plaintiff also seeks to take discovery to support an unconscionability defense to the arbitration agreement. American Express argues that after the Supreme Court case of Concepcion, an arbitration agreement containing a class action waiver can no longer be found unconscionable and therefore invalid based upon the waiver. American Express asserts that because this defense is no longer available to a party opposing a motion to compel arbitration, Plaintiff’s request for discovery on the issue of unconscionability must fail. The Court disagrees. In Concepcion, the Supreme Court held that the FAA preempts California’s unconscionability law regarding exemption of certain claims from arbitration, at least for actions in federal court. Concepcion declared that states cannot refuse to enforce arbitration agreements based on public policy. 131 S.Ct. at 1746, 1752 (holding that the rule set forth in Discover Bank v. Superior Court, 36 Cal.4th 148, 30 Cal.Rptr.3d 76, 113 P.3d 1100 (2005), is preempted by the FAA because it is incon-sistent with the FAA’s purposes, despite “its origins in California’s unconscionability doctrine and Cali-fornia’s policy against exculpation”). Prior to Concepcion, the Discover Bank rule was consistently applied to render any consumer contract of adhesion containing a class action waiver unconscionable. Fol-lowing Concepcion, “Plaintiff can no longer rely on California’s Discovery Bank rule to assert that the arbitration agreement is substantively unconscionable merely because it includes a class action waiver.” Hamby v. Power Toyota Irvine, 798 F.Supp.2d 1163, 1164 (S.D.Cal.2011) (citations omitted). However, Concepcion also reaffirmed that the FAA “permits agreements to arbitrate to be invali-dated by ‘generally applicable contract defenses, such as fraud, duress, or unconscionability,’ [although] not by defenses that apply only to arbitration or that de-rive their meaning from the fact that an agreement to arbitrate is at issue.” Concepcion, 131 S.Ct. at 1746 (citation omitted). Based on these available defenses to the validity of an arbitration agreement, courts have permitted parties opposing a motion to compel arbitration to take discovery on the unconscionability of an arbitration provision, including ones with class action waivers, post-Concepcion. See Hamby, 798 F.Supp.2d at 1165 (permitting discovery on uncon-scionability as a generally applicable contract defense after Concepcion ); Newton v. Clearwire Corp., 2011 WL 4458971 (E.D.Cal. Sept.23, 2011) (discussing Concepcion and finding plaintiff entitled to much of the discovery she sought because it was relevant to her argument that the arbitration clause at issue pro-duces overly harsh or unjustifiably one-sided results, and therefore is unconscionable); Hess v. Sprint Spectrum, L.P., 2012 WL 37399 (W.D.Wash. Jan.9, 2012) (permitting sixty days of discovery on the alleged unconscionability of the arbitration clauses). In this case, Plaintiff seeks discovery to make the case that the arbitration provision at issue is un-conscionable and therefore unenforceable. “[I]n as-sessing whether an arbitration agreement or clause is enforceable, the Court should apply ordinary state-law principles that govern the formation of con-tracts.” Davis v. O’Melveny & Myers, 485 F.3d 1066, 1072 (9th Cir.2007).
Accordingly, the District Court allowed discovery into: he number of class actions Defendant has brought against its card holders; the procedures, rules, and costs of the proposed arbitrators; Defendant’s relationships with the proposed arbitrators, such as contracts and other business dealings; the case names, numbers, courts, and outcome of Defendant’s prior attempts to compel arbitration in TCPA cases and whether the arbitration clause was found unconscionable; the case names, numbers, courts, and outcome of individual cases brought in court or through arbitration regarding Telephone Consumer Protection Act claims; the manner, method, and means by which AEC card holders were notified of amendments to their card member agreements; and communications by and between Plaintiff and AEC.